The Anti-Counterfeit Act was assented to on December 24th 2008 by President Mwai Kibaki. The Act establishes the Anti-Counterfeit Agency with the mandate to administer anti-counterfeiting policy and law in Kenya. The Agency has three main functions. It enforces the provisions of the Anti-Counterfeit Act, 2008; enlightens and informs the public on counterfeiting issues and combats counterfeiting in Kenya. The Act is viewed as giving law enforcement agencies-“teeth to bite” in the fight against the proliferation of counterfeit products in Kenya.
The Act defines counterfeiting thus:
“…taking the following actions without the authority of the owner of any intellectual property right subsisting in Kenya or elsewhere in respect of protected goods:
(a) the manufacture, production, packaging, re-packaging, labeling or making, whether in Kenya or elsewhere, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods;…..”
It further includes:
“…(b) the manufacture, production or making, whether in Kenya or elsewhere, the subject matter of that intellectual property, or a colourable imitation thereof so that the other goods are calculated to be confused with or to be taken as being the protected goods of the said owner or any goods manufactured, produced or made under his licence;
(c) the manufacturing, producing or making of copies, in Kenya or elsewhere, in violation of an author’s rights or related rights.”
The Act also defines “counterfeit goods” as:
“…goods that are as a result of counterfeiting and includes any means used for the purposes of counterfeiting.”
The Act penalises counterfeiting and offences under the Act include a prison term of up to five years and/or to a fine not less than three times the value of the prevailing retail price of the goods in case of a first conviction. In case of a second or subsequent conviction, the prison term is 15 years and the fine is not less than five times the value of the prevailing retail price of the goods. It is noteworthy that the fine is not pegged on a fixed amount but on the prevailing retail value of the legitimate goods. 10% of the fines imposed by the court for offences under the Act shall award to the complainant, 40% to the government of Kenya and 50% to the agency.